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 IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Robert L. Hillman, :

 Plaintiff, : Case No. 2:11-cv-607

 v. : JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

State of Ohio, et al., :

 Defendants. :

 

REPORT AND RECOMMENDATION

This case is before this Court to consider a motion to

dismiss filed by Defendant, Ron O’Brien, the Franklin County

Prosecuting Attorney (Doc. #8), and a motion for a show cause

order (Doc. #15) filed by Plaintiff, Robert Hillman. For the

reasons that follow, the Magistrate Judge recommends that the

motion to dismiss be granted and that the claims against the

remaining defendants, the State of Ohio and the Franklin County

Prosecutor’s Office, be dismissed as well. The Magistrate Judge

also recommends that the motion for a show cause order be denied. 

I. Background

The following facts are considered true for purposes of this

motion only and are taken from Mr. Hillman’s complaint, as well

as the state court online docket for Mr. Hillman’s applications

to expunge his criminal records, of which this Court takes

judicial notice. See State v. Hillman, Nos. 08EP-646, 08EP-665,

and 08EP-669 (Franklin Cnty. C.P. filed November 12, 2008 and

November 20, 2008); Lynch v. Leis,382 F.3d 642,648 n.5 (6th Cir.

2004)(stating the Court is entitled to take judicial notice of

facts appearing on a state court online docket). Mr. Hillman is

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a pro se prisoner litigant currently residing at Chillicothe

Correctional Institution and proceeding before this Court in

forma pauperis. In November of 2008 Mr. Hillman filed with the

Franklin County Court of Common Pleas three applications

requesting that certain portions of his criminal record be

expunged. See Hillman, Nos. 08EP-646, 08EP-665, and 08EP-669

(Franklin Cnty. C.P. filed November 12, 2008 and November 20,

2008). On April 27, 2009 the Court of Common Pleas entered an

order denying his requests. Id. Mr. Hillman appealed and on

January 28, 2010, the Ohio Tenth District Court of Appeals

reversed and remanded, holding the trial court based its decision

on the wrong statute. State v. Hillman, Nos. 09AP-478, 09AP-479,

09AP-480, 2010 Ohio 256 (Franklin Cnty. App. January 28, 2010). 

On April 5, 2010 the trial court again denied all three of

Mr. Hillman’s applications to have his records expunged. See

Hillman, Nos. 08EP-646, 08EP-665, and 08EP-669 (Franklin Cnty.

C.P. April 5, 2010). On March 22, 2011 the Ohio Tenth District

Court of Appeals affirmed the decision finding that the reasoning

of the trial court was sufficiently laid out in its judgment

entries. State v. Hillman, Nos. 09AP-424, 09AP-425, 09AP-426

(Franklin Cnty. App. January 28, 2010). On June 22, 2011 the

Supreme Court of Ohio declined jurisdiction to hear Mr. Hillman’s

appeal. State v. Hillman, 128 Ohio St.3d 1559 (2011). 

On July 21, 2011 Mr. Hillman filed his complaint with this

Court. (Doc. #3). He claims he is filing “an appeal” from the

state of Ohio’s decision denying his applications to expunge his

nonconviction criminal record. (Doc. #3, p. 1). In his

complaint, Mr. Hillman argues that the state appellate court 

violated his federal constitutional rights by 1) denying his

application to have his records expunged, 2) misapplying O.R.C.

§2953.52 because no legitimate government need outweighed Mr.

Hillman’s interest in having his records sealed, 3) failing to

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rule on the merits of his Rule 60(B) motion, and (4) refusing to

order a transcript of the proceedings at no cost to Mr. Hillman. 

On September 26, 2011, Mr. O’Brien filed a motion to dismiss

Mr. Hillman’s complaint. (Doc. #8). On January 17, 2012, the

Magistrate Judge filed a Report and Recommendation, recommending

that the Court strike the motion to dismiss for lack of service.

(Doc. #12). On January 23, 2012 Mr. O’Brien filed his first

objection to that recommendation (Doc. #13), indicating the

motion to dismiss had now been filed and served. Because Mr.

O’Brien has now served Mr. Hillman with the motion to dismiss,

the prior R&R issued in this case (Doc. #12), striking the

motion, is now moot. This Report and Recommendation will address

the motion to dismiss on the merits.

II. Standard of Review

“A Rule 12(b)(1) motion can either attack the claim of

jurisdiction on its face, in which case all allegations of the

plaintiff must be considered as true, or it can attack the

factual basis for jurisdiction, in which case the trial court

must weigh the evidence and the plaintiff bears the burden of

proving that jurisdiction exists.” DLX, Inc. v. Kentucky, 381

F.3d 511, 516 (6th Cir. 2004). “A facial attack on the subject

matter jurisdiction alleged by the complaint merely questions the

sufficiency of the pleading.” Ohio Nat’l Life Ins. Co. v. United

States, 922 F.2d 320, 325 (6th Cir. 1990). Here, Mr. O’Brien has

lodged a facial attack on Mr. Hillman’s complaint, arguing this

Court lacks jurisdiction under the Rooker-Feldman doctrine. 

28 U.S.C. § 1915(e)(2) requires the Court “to dismiss the

case at any time if the court determines that ... the action or

appeal . . . fails to state a claim on which relief may be

granted . . .” A complaint does not fail to state a claim upon

which relief can be granted if the complaint contains “enough

facts to state a claim to relief that is plausible on its face.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). All

well-pleaded factual allegations must be taken as true and be

construed most favorably toward the non-movant. Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974); Gunasekera v. Irwin, 551 F.3d

461, 466 (6th Cir. 2009). The Court is mindful that pro se

complaints are to be construed liberally in favor of the pro se

party. Haines v. Kerner, 404 U.S. 519, 520 (1972). It is with

these standards in mind that the Court addresses the instant

motion to dismiss. 

III. Discussion

A. Rooker-Feldman

Mr. O’Brien argues that this Court lacks jurisdiction to

hear Mr. Hillman’s claims under the Rooker-Feldman doctrine. In

essence, that doctrine states that the United States District

Courts do not have jurisdiction to hear appeals from the

decisions of state courts; rather, such jurisdiction is vested

exclusively in the United States Supreme Court by 28 U.S.C.

§1257. Consequently, if an unsuccessful state court litigant

comes to the District Court seeking review of the state court’s

rulings, jurisdiction is lacking. See District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity

Trust Co., 263 U.S. 413 (1923). 

As the Supreme Court has noted, however, the doctrine is a

fairly narrow one that had been unduly expanded by some courts to

overlap with the doctrines of claim preclusion and issue

preclusion. That expansion was incorrect. An unsuccessful state

court litigant who brings to the federal courts the same dispute

that was decided in state court may be subject to claim or issue

preclusion defenses, but Rooker-Feldman does not apply unless the

litigant claims an injury to his or her rights stemming from the

state court decision itself, or asserts errors in the state court

decision-making process. See Exxon Mobil Corp. v. Saudi Basic

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Industries Corp., 544 U.S. 280, 284 (2005)(“The Rooker-Feldman

doctrine . . . is confined to . . . cases brought by state-court

losers complaining of injuries caused by state-court judgments

rendered before the district court proceedings commenced and

inviting district court review of those judgments”).

Exxon Mobil and its progeny, such as Lawrence v. Welch, 531

F.3d 364 (6th Cir. 2008), have narrowed the reach of the

Rooker-Feldman doctrine. As Lawrence explains, “the pertinent

inquiry after Exxon is whether the ‘source of injury’ upon which

plaintiff bases his federal claim is the state court judgment

[itself].” Lawrence, 531 F.3d at 368. See also McCormick v.

Braverman, 451 F.3d 382, 393 (6th Cir. 2006) (“[t]he inquiry ...

is the source of the injury the plaintiff alleges in the federal

complaint. If the source of the injury is the state court

decision, then the Rooker-Feldman doctrine would prevent the

district court from asserting jurisdiction”). The doctrine does

not apply when the plaintiff simply asserts the same claim that

was raised in the state court proceedings and identifies the

source of his or her injury as the action of some third party -

such as the state court opposing party - rather than the state

court judgment. See Pittman v. Cuyahoga County Dep’t of Children

and Family Servs., 241 Fed.Appx. 285, 287 (6th Cir. 2007). The

doctrine also does not apply when the plaintiff is not

challenging the state-court decision, but a statute or rule

governing that decision. Skinner v. Switzer, 131 S. Ct. 1289,

1298 (2011). Although the other defendants have not filed motions

to dimiss, this Court applies its application of the RookerFeldman doctrine to them as well because it is a jurisdictional

doctrine and this Court can raise it sua sponte. Saker v. Nat’l

City Corp., 90 Fed. Appx. 816, 819 n.1 (6th Cir. 2004)

All but one of Mr. Hillman’s claims are in essence an appeal

from the state court judgment. Were the Court to rule on those

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claims, it would, in essence, be serving in the role of an

appellate court in violation of the Rooker-Feldman doctrine. Here

is why.

In his complaint, Mr. Hillman specifically challenges the

state court judgment itself, arguing there were errors in the

state court decision-making process. He claims the appellate

court violated his constitutional rights when it 1) denied his

application to have his records expunged, 2) found that a

legitimate government need outweighed his interest in having his

records expunged, and 3) failed to rule on the merits of his Rule

60(B) motion. As to these three claims, the source of the injury

about which Mr. Hillman complains is the order of the state court

of appeals itself and not any action caused by the opposing party

in state court nor any challenge to a rule or statute. Thus,

these three claims fit neatly within the contours of the RookerFeldman doctrine and should be dismissed against all parties. 

Construing Mr. Hillman’s complaint liberally, however, there

may be one claim to which the the Rooker-Feldman doctrine is not

applicable. Mr. Hillman also claims that he was denied his

constitutional rights when the state court of appeals refused to

order a transcript of the proceedings at no cost to him. The

court of appeals stated that Mr. Hillman did not order a

transcript in the case and that it was his responsibility to

furnish a sufficient record on appeal. In the absence of a

transcript, the court of appeals presumed the regularity of the

proceedings in the trial court. 

Mr. Hillman claims he was denied due process and equal

protection of the laws when the court of appeals refused to

provide him with a transcript because he was indigent and was not

able to afford one. Construing Mr. Hillman’s complaint liberally

and in a light most favorable to him, it is possible to read his

complaint as challenging a state law, rule, or policy that allows

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an Ohio court to charge him a fee for his transcript, even though

he is an indigent prisoner. Under this interpretation of his

complaint, the source of his injury would be that rule or policy

itself, and not the state court decision applying that policy. 

Therefore, this Court will consider his argument that he was

denied due process and equal protection when the state court of

appeals failed to provide him with a transcript of the trial

court proceedings. 

B. Denial of Trial Transcript

Mr. O’Brien’s motion to dismiss does not address whether Mr.

Hillman failed to state a claim on which relief could be granted

when he claimed it was unconstitutional for the Ohio Court of

Appeals to deny him a transcript. This Court, however, may raise

this issue sua sponte because Mr. Hillman is proceeding in forma

pauperis. 28 U.S.C. §1915(e)(2)(B)(ii)( “[T]he court shall

dismiss the case at any time if the court determines that . . .

the action . . . fails to state a claim on which relief may be

granted”).

“[A] State cannot arbitrarily cut off appeal rights for

indigents while leaving open avenues of appeal for more affluent

persons.” Ross v. Moffitt, 417 U.S. 600, 607 (1974). In Griffin

v. Illinois, 351 U.S. 12, 19 (1956), the Court deemed it a

violation of the Fourteenth Amendment to deny a copy of a trial

transcript to an indigent defendant, holding that one who was

unable to pay the cost of obtaining such a transcript was

precluded from obtaining appellate review of asserted trial

error. Griffin has not generally been extended to civil cases,

although the Court makes exceptions for those civil cases

involving fundamental interests, such as intrusion on family

relationships. M.L.B. v. S.L.J., 519 U.S. 102, 114, 116 (1996). 

See also Johnson v. Hubbard, 698 F.2d 286, 289 (6th Cir.

1983)(holding there was no constitutional requirement to waive

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costs of transcripts, expert witness fees, and fees to secure

depositions); Tucker v. Branker, 142 F.3d 1294, 1299 (D.C. Cir.

1998) (noting that the Supreme Court has held that either the

equal protection clause or the due process clause requires that

certain fees be waived for indigent defendants in criminal cases

and for indigent litigants in civil cases in which certain

fundamental interests are at stake, but not in civil cases in

general). 

In general, “[n]ondisclosure of one’s criminal record is not

one of those personal rights that is ‘fundamental’ or ‘implicit

in the concept of ordered liberty.’” Cline v. Rogers, 87 F.3d

176, 179 (6th Cir. 1996)(discussing the Constitutional right to

privacy in one’s criminal record)(quoting Whalen v. Roe, 429 U.S.

589, 600 n. 23 (1977)). See also Villa v. Vill. of Elmore, No.

3:02CV7357, 2002 WL 317289970 (N.D. Ohio December 3, 2002).

Therefore, Mr. Hillman has no fundamental right in having his

records expunged. His complaint, however, can be construed as

arguing that his interest in having his records expunged is

fundamental because expungement would allow him access to

additional rights, such as access to fair employment, housing,

and government grants, as well as access to certain prison

programs, institutions, and a change in his prison security

level. (Complaint, Doc. #3, p. 6). Because Mr. Hillman has no

fundamental right to have his records expunged, however, other

rights flowing from such expungement are too attenuated for this

Court to consider. Because Mr. Hillman’s interest in having his

records expunged is not fundamental, the government need only a

rational justification to charge him for a transcript. United

States v. Kras, 409 U.S. 434, 446 (1973).

Here, there is a clear rational basis for courts to charge a

fee for transcripts. It has long been the case that court are

permitted to charge for certain court costs, such as transcripts

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and expert witness fees. See Johnson, 698 F.2d 286, 289 (6th

Cir. 1983). For obvious reasons, such as the judicious use of

taxpayer dollars, the Court cannot use government funds to fund

every expense associated with the cost of litigation. Moreover,

the Sixth Circuit has recognized some value in putting economic

incentives on litigants that would force them to “stop and think”

before proceeding with litigation in order to ensure that their

claims have merit. See generally Hampton v. Hobbs, 106 F.3d

1281, 1286 (6th Cir. 1997)(discussing the fee requirements of the

Prison Litigation Reform Act and Congress’s rationale for

implementing them). Thus, there is a rational basis for charging

a litigant the cost of a transcript. Accordingly, to the extent

that Mr. Hillman has actually raised such a claim in his

complaint, that claim should be dismissed. 

C. Civil and Criminal Contempt

Mr. Hillman has asked this Court to hold defendants in

contempt of court because their certificate of service did not

contain a date (Doc. #15, 16), the defendant’s “excuse” for not

serving the original motion was false (Doc. #16), the motion to

dismiss served on Mr. Hillman did not have the original time

stamp (Doc. #16), the defendants changed the caption of the case

from Hillman v. State of Ohio, et al. to Hillman v. Ron O’Brien

in his official capacity as Franklin County Prosecutor (Doc.

#15), the defendants’ motion to dismiss does not mention that Mr.

Hillman is seeking expungement of nonconvictions and charges as

opposed to expungement of convictions (Doc. #15), and defendants

have not explained to this Court that expunged records can be

kept on file for investigative purposes (Doc. #15). 

As this Court stated in its December 15, 2011 order, a

finding of contempt usually requires clear and convincing

evidence of a violation of a court order. The matters about

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which Mr. Hillman complains do not rise to the level of contempt

and Mr. Hillman’s request should be denied (Doc. #15).

D. Other Issues

The Court is also recommending that any claims asserted

against the other defendants be dismissed. Because Mr. O’Brien

is the Franklin County Prosecutor, and appears to have been sued

in his official capacity, the claims against him are equivalent

to the claims against his office (to the extent that it is a

suable entity), see Kentucky v. Graham, 473 U.S. 159, 165 (1985),

and is subject to dismissal for the same reasons. The State of

Ohio does not appear to have been served with a complaint and

summons. In any event, any claims against the state would, for

the reasons cited above, be barred by Rooker-Feldman or lack

merit, and would also be subject to the jurisdictional bar of the

Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 662-663

(1974). 

IV. Conclusion

For all the foregoing reasons, the Magistrate Judge

recommends that the Court grant Mr. O’Brien’s motion to dismiss

(Doc. #8) as well as dismiss all claims against the remaining

defendants. The Magistrate Judge also recommends that Mr.

Hillman’s request for a show cause order be denied. (Doc. #15).

V. Procedure on Objections

If any party objects to this Report and Recommendation, that

party may, within fourteen (14) days of the date of this report,

file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection

is made, together with supporting authority for the objection(s). 

A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

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in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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